Hon'ble
Mr. Justice K.Ramaswamy Hon'ble Mr. Justice B.L.Hansaria Mr. Narayan Shetty,
Sr. Adv. and Mr.S.C.Patel, Adv. with him for the Appellant in C.A.No. 7091/95 Mr.S.K.Dholakia,
Sr. Adv. Mrs.H.Wahi, Adv. with him for the State of Gujarat. Mr. R.P. Bhatt, Sr. Adv. and Mr.M.N.
Shroff, Adv. with him for the Respondents.

These
appeals by special leave arise from the Judgment of the Division Bench of the
Gujarat High Court dated March
3, 1994 made in L.P.A.
No. 129/93 and batch. Respondent No.1 is a Trust which is a recognized
Institution running primary education schools. It claimed for grant-in-aid for
one clerk and one peon, i.e., non-teaching staff. The appellants rejected the
claim. When they approached under Art. 226, the High Court interpreted sub-rule
(3) of Rule 115 of the Bombay Primary Education Act, 1949 holding that while a
institution running more than one school is given grant-in- aid to non-teaching
staff the refusal thereof to a single school is violative of Art. 14.
Direction, therefore, was given to accord grant-in-aid to the non-teaching
staff of the respondent's school.

The
question, therefore, is whether the Institutions running single school are
entitled to grant-in-aid for the non-teaching staff like clerk & peon. Rule
115 (1) and (3) reads thus:

Sub-rule
(1). "Normally the grant paid to an approved private school in any year is
the grant paid for that year and shall be calculated on the number of pupils in
average attendance in the school during the preceding year.

Provided
that :- (i) grant to an approved private school during the first year of its
existence shall be based on the number of pupils in average attendance in the
school during the first half of the school year. Such grant shall not, however,
exceed three fourths of the estimated expenditure of the school of the pay of
its teacher, during the year; and (ii) no grant to an approved school shall be
paid in any year unless the average attendance of pupils is 25 and above during
the year.

Explanation
- In the case of two or more approved schools conducted by an Association or
Society, the average daily attendance shall be calculated by adding together
the actual number of daily attendance of pupils of all the schools conducted by
the Association or Society and dividing the total by the number of schools so
conducted." Sub-rule (3). "Subject to the instructions that may be
issued by the Director from time to time educational bodies or associations
conducting a number of approved schools shall be entitled to grant on overhead
expenditure at three fourths of their approved expenditure under that
head." When a doubt has arisen whether the rule will be applied to the
teaching staff as well, we directed the Government to clarify its stand. An
additional affidavit has been filed on July 11, 1995 in which Dr. I.M. Patel, the
Director of Primary Education stated in paragraph 2 thus :

"That
the controversy involved in this case is limited to the payment of grant
payable to non-teaching staff only. As far as grant towards salary expenses of
teaching staff is concerned, it is being paid to all the teacher of private
schools irrespective of the fact whether an institution or trust runs one
school or more than one school. The percentage of grant payable towards Salary
expenses to teaching staff varies from 85% to 95%. The copy of the resolution
of Education Department of Govt. of Gujarat dated 11th
October, 1977 is
annexed herewith and marked as Annexure "B". It is further submitted
that even in Govt.

Primary
School there is no such practice of appointing non-teaching staff like a clerk
or a peon. On the other hand if there are more than 200 students then one extra
teacher is permitted to be appointed. Moreover in such schools clerical work is
very less. The salaries of teachers are directly paid by Govt. through cheque.
Moreover additional teachers as aforesaid over the strength of 200 students
undertake the responsibility of administrative, clerical and other misc. kind
of work if necessary. Even where the institution runs more than once school,
the grant towards the salary expenses of non- teaching staff is not being paid.
There is not a single primary school in the state of Gujarat where grant for such expenses
incurred under the overhead of Non-teaching staff is paid." It would thus
be clear that they being not only as a matter of rule and also practice, no
money is being paid by way of grant-in-aid or otherwise to any school either
maintained by the Municipality or any statutory body. The administrative work
is being got done by the appropriate persons including teachers even in
Government Primary Schools as averred in the additional affidavit. We are of
the opinion that the High Court was, therefore, not right in holding that there
is a discrimination in denying the payment of grant-in-aid to the respondents
for the non- teaching staff.